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Pinterest: Fair Use of Images, Building Communities, Fan Pages, Copyright

When using Pinterest (and Flickr and YouTube and Facebook
and on and on), what copyright, fair use, trademark and other issues
weigh on building communities and corporate use of fan pages and social media generally?
A hypothetical “Company” has plans for its Pinterest “community”, and
in particular, wonders about these situations:

Using Images of Identifiable People

Fair Use and Images

Trademarks: When is a “Fair Use” Argument Strongest?

Why Attribution and Linking to Original Sources is Important

3 introductory questions:

Question #1: Someone used to be a paid Company
sponsor or spokesperson. They are no longer. Can the Company continue
to post a photo of the old sponsor to Pinterest? Short Answer:
If the contract with the sponsor expressly permits it, yes.
Ordinarily, the contract would specify engagement for limited time, and
that would prohibit rights to use images beyond the contract period.
But it really depends on what the contract says.

Question #2: Can the Company post a photo of a fan of the Company? Short Answer:
Express consent is required, either through a release or the fan’s
agreement (whenever the photo is submitted) to terms of service.
Exceptions are discussed below.

Question #3: Can the Company post a photo of a Coca-Cola bottle on its Pinterest page? Short Answer: If the use of the image does not suggest (implicitly or explicitly) endorsement or association, then yes.

Below is discussion of these issues, with “Guidelines” at the end.

Using Images of Identifiable People

General Rule #1: You need permission to use images. This is true with any
individuals, but particularly so with celebrities: Without a release or
permission, you potentially violate common law or state law rights of
privacy and publicity (e.g. New York and California have robust protections for celebrities ). See for example, George Clooney’s and Julia Roberts’ legal travails.

Exceptions:

Political figures: You could probably use a picture of President
Obama or Governor Romney, under a public domain argument. Or, more
likely, simply since it’s highly unlikely that Obama or Romney would
legally take issue with your doing so (but: Artechnica in July reported on a DMCA takedown notice YouTube received in connection with a Romney campaign ad showing Obama singing). But:
Even that exception will not apply if your use suggests the candidates’
endorsement of your products, services or advocacy message. This
exception also would not apply if you don’t have the permission of the
photographer or image owner (e.g. AP for photos). Famous example: Shepherd Fairey lawsuit with Obama “Hope” image, which was defended under fair use.

Fair use: For example you use an image of Lebron James as part of
news reporting, criticism, commentary, parody, satire, etc. Fair use is
also why use of images of political figures is less concerning than
celebrities: Political figures are more traditionally subjects of “news
reporting” under fair use.

Non-identifiable people: For example, images of crowd scenes from
sporting events or concerts, street pictures from cities, or any images
where individuals cannot be easily identified or, more to the point,
identifiable individuals are not really the subject of the image.

Contract: If you have a contract with a spokesperson or other a
celebrity for use of their photo, then the answer depends on the terms
of the contract. An example: You can always have a contract agreement
allowing you to use someone’s photo (a “release”), say for example a
celebrity endorser for a product. But the question comes up, what
happens when the sponsorship or endorsement period ends? You might
think that if the release is for a fixed period, use of the celebrity’s
photo or likeness is also for the same period. But does this mean you
can’t even refer to the photo and say, “So and so used to endorse our
product, and you should too”? There’s no reason you couldn’t provide
for that use under the contract, but without expressly doing so in the
contract you likely wouldn’t be able to do so.

General Rule #2: Even if it may be ok to post someone’s image, you still always
need the separate permission of the image owner (typically the
photographer, but not always). This right is separate from that of the
image subject. If a celebrity sponsor gives you permission to use her
photo, you cannot simply pull an image of the celebrity from the web and
repost. You still must obtain rights to use the image itself.

Exception:

Fair use: Same point as above. A good example – though controversial: Perez Hilton’s routine use of copyrighted images
of celebrities while adding a mustache or something similar, claiming
rights under fair use for “commentary” or “parody” or even news
reporting. Even in the best light, this is aggressive pushing of the
line between entertainment and news in order to take advantage of fair
use legal protections.

Fair Use and Images

If you do not own rights to images, you risk copyright infringement
for posting images to Pinterest. Of course, if the image is not
protected by copyright (e.g. public domain) or if you own the image,
then this is not an issue. For copyrighted images, there is no blanket
“fair use” right to post images to Pinterest. Nonetheless, here are 3
particularly relevant fair use issues:

Transformative uses: When you “transform” an image, add commentary, etc. See, for example, Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994) and my blog on this same subject at “Fair Use Copying of Photographs and Artwork”.
Any uses that might fall under traditional fair use guidelines for
parody, satire, commentary, news reporting and so forth. This looks at
(1) whether the use of the copyrighted work is “socially productive”,
(2) whether the use is commercial or noncommercial and (3) whether the
user acted in good faith. A use is socially productive if it is
“transformative” of the original work, meaning: More than replacing or
copying, but adding value to the original or creating something new.
Parody and satire are given protection under copyright and defamation
laws because they are viewed as transformative uses of original
material. Similarly, news reporting is (generally) deemed
transformative and therefore socially productive – and protected as fair
use.

Commercial vs. non-commercial uses: In the Sony Betamax case (Sony Corporation of America v. Universal City Studios, Inc.,
464 U.S. 417 (1984)), the Supreme Court stated that commercial uses
give rise to a presumption of unfair use. While noncommercial uses are
favored over commercial uses, so long as the use is transformative (see
above) a commercial use can still qualify as fair use.

This, then, raises the question of what is “commercial” when a
Pinterest wall is sponsored by a commercial business. The distinction
of who does the posting
becomes meaningful (a brand marketer vs. individual fans and other
users), as does the distinction between what business purpose is being
achieved (direct product promotion vs. more broad community
development). As noted, a commercial use can qualify as a fair use, but
will require other supportive fair use arguments.

Nature of the copyrighted work. Copyright protects an author’s unique expression
of facts and ideas. Facts and ideas themselves (as opposed to their
expression) will generally not be protectable through copyright and,
likewise, generally will not support claims of copyright infringement.
For the same reason, when the nature of the copyrighted work is more
factual or informational than creative, fair use is more likely to be
found. So, for example, greater copyright protection will apply to
scholarly treatises and works of fiction, poetry, music and
choreography, than will apply to biographies, histories and hard news.
With photographs and other images, artwork tends to get greater
copyright protection than photographs (not including photographs of
artwork), but that’s a tough line to draw. But some images will
definitely generate less copyright protection (and greater fair use
flexibility) than others. Creativity in the original work is an
important consideration when thinking about fair use.

Trademarks: When is “fair use” argument strongest?

Trademark gives its owner the right of exclusive use to the
trademark, but only when used “as a trademark”. If the use of the mark
is for any purpose not a “trademark use”, that use does not fall within
the exclusive rights of the trademark owner. I recently wrote about
this same issue here.

With trademark, this is also sometimes called “nominative” use (good description here),
and sometimes “fair use”, though somewhat different than copyright fair
use. Fair use may be made of a trademark only with lack of a statement
– implicit or express – of endorsement by the trademark owner. This
goes back to the most common ground for a claim of trademark
infringement, namely likelihood of confusion as to the source of the
goods or services being promoted. The ultimate value of trademark is
the association of a logo, brand, product or service with a particular
individual or company owner. The absence of that association in a third party’s use of a trademark – “Oh
Lord, won’t you buy me … a Mercedes Benz / My friends all drive
Porsches, I must make amends” (Janice Joplin, “Mercedes Benz”) – undercuts an infringement case while supporting a “nominative” or fair use argument.

Can your Company post a photo of a Coca-Cola bottle? Answer:
Coca-Cola (the name) is a registered trademark as is the Coca-Cola
bottle. Generally, as with copyrights, only the trademark owner can use
the trademark. But if your use of the image of a Coca-Cola bottle is
not for a “trademark purpose”, then the use is fine. You cannot post a
Coca-Cola bottle image to suggest a Coca-Cola endorsement of your
Company or your Company’s products, although a prominent disclaimer
might address that concern. But context is important: Would the
consuming public perceive an association or endorsement? Tough to say
in the abstract. On the other hand, a Company’s social media fan’s
posting of the same image would not likely suggest any such endorsement.

2 examples of trademark uses of images:

A magazine story features a photograph of a woman wearing a tee-shirt
with a picture of a famous comic books superhero character, a
trademarked character. The story is about the woman and her battle with
a serious illness, having nothing to do with the character or with the
comic book company or with the trademark. The trademark is clearly
incidental to the photo and to the story. This is an acceptable use of
the trademark.

A cash-for-gold jewelry dealer in Toronto (featured in a New Yorker profile
last year) promotes his business through television commercials
featuring the character “Cashman” dressed in a red cape and pair of blue
tights and dollar signs on his chest. “Cashman” bursts out of
telephone booths to frighten desperate Torontonians into parting with
their family heirlooms. The owner of the Superman trademarks felt
compelled to ask – nicely at first, not so nicely in the subsequent
lawsuit – that “Cashman” stop trading on the Superman goodwill.

Why Attribution and Linking to Original Sources is Important

There is some supportive legal authority that “pinning” to a
Pinterest wall is not technically “copying” (and therefore cannot be
copyright infringement) because the user is only really uploading a URL
to the original web location of an image, without actually “copying” the
image. Viacom v. YouTube, at least in the District Court opinion,offers ambiguous support for this view. (See also my discussion of this issue here.)
While it is difficult to gain comfort relying on a hyper-technical
“non-infringement”, it may be a useful practical point: Pinterest’s TOS encourages full attribution and linking to original sources, rather than links to search results or sources like Google Image Search, Flickr, and Facebook,
etc. This will not resolve all legal uncertainties about “pinning”
images to Pinterest, but it would achieve 3 important things:

1. Reduces likelihood and tone of complaints from photographers,
image houses, and other original sources about possible copyright
violations, since attribution and direct linking seem to be more
consistent with acceptable sharing and “social” aspects of “social
media”.

2. Facilitates ease of recourse to established legal processes under Digital Millennial Copyright Act (DMCA) takedown framework,
by being fully upfront about the nature of use, sources of images used,
and a user’s willingness to cooperate with takedown requests. And
since much of Pinterest’s legal position itself is based on Pinterest’s
compliance with DMCA obligations, this in turn reduces the likelihood of
complaints from Pinterest and Pinterest users about a Company’s and a
Company’s users violation of Pinterest’s TOS.

3. Supports a fair use argument that the attribution and original
linking supports (rather than detracts from) the copyright owners’
economic benefits.

* * *

Guidelines

1. Copyright: If you do not own rights to images, you risk copyright
infringement for posting of photos to Pinterest. If an image is not
protected by copyright (e.g. public domain) or if you own the image,
then this is not an issue.

2. Photos of people: Even if a photo is yours or you obtain photographer’s permission, you still must obtain a photo subject’s
permission. You would need permission, either through a release or
agreement to terms of service (whenever the photo is submitted).
Likewise, even if you obtain a photo subject’s permission, you still
must obtain an image owner’s permission.

3. Celebrities and spokespeople: In addition to permissions needed for photos of anybody, avoid express or implied endorsement of your product.

5. Attribution and linking: Good practice to prominently attribute
photos to proper owners and link back to original sources (not links to
search results, Google Images, Facebook or Flickr).

6. Trademarks: Avoid uses of trademarks that suggest (implicitly or
explicitly) endorsement by the trademark owner. Put another way: Is it
unreasonable for consumers to be confused about the relationship between
your brand and the trademark owner’s brand? Disclaimers can be
helpful, but ultimately depends on context. No bright-line legal test,
but that simply means use common sense.

7. Consider TOS or a similar legal disclaimer for your own users who
post: (a) Postings must be for non-commercial use only of the user, and
no promotion of products or businesses of the user, (b) users are
responsible for their posted images, must use only images that they own
or have rights to post and that will not violate copyrights of others,
and must not use images of people (celebrities or otherwise) without
affirmative consent, and (c) users own postings by users (analogous to
Pinterest TOS DMCA protections).

Andrew Mirsky is an attorney and Principal of Mirsky & Company,
PLLC, a law firm with particular emphasis in new media, intellectual
property, technology, corporate and nonprofits. Andrew has 17 years’
experience as a business and commercial lawyer, including 5 years’
experience in company management of media and technology enterprises.

(This post originally appeared on the website of Mirsky & Company,
PLLC on October 4, 2012; reprinted by kind permission of the author. Photo courtesy of Flickr user Padre Denny pursuant to Creative Commons CC BY-NC 2.0 license.)

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